Does a lawyer violate the ethics rules by issuing a written legal opinion to an employee organization that turns out to be wrong on the law?

Plain-English summary

A private attorney represented an organization of peace officers employed by a Texas political subdivision. In a dispute with the agency director, the attorney was retained to prepare a signed "legal opinion" recommending a course of conduct contrary to the director's orders, which was then circulated to the organization's members. The inquiry, premised on an allegation that the opinion recommended conduct contrary to the members' legal obligations, asked whether issuing it violated the Code.

The Committee first stressed that it does not decide questions of law, so it expressed no view on whether the opinion was legally correct. It then explained the framework. If the opinion correctly states the law, issuing it violates no Disciplinary Rule. If it recommends conduct contrary to law, the mere fact of legal error is not itself a violation; whether there is a violation usually turns on the attorney's mental state. A lawyer who, knowing the correct legal standard, deliberately issues an opinion recommending conduct he knows is illegal violates DR 1-102(A)(4) (dishonesty, fraud, deceit, or misrepresentation), may violate DR 1-102(A)(5) (conduct prejudicial to the administration of justice given the peace officers involved), and violates DR 7-102(A)(5) and (7) (knowingly making a false statement of law or fact and counseling or assisting a client in conduct the lawyer knows is illegal).

Even without deliberate wrongdoing, the Committee added, the lawyer violates DR 6-101(A) if the erroneous opinion resulted from handling a matter he knew or should have known was beyond his competence or without adequate preparation. But if the lawyer acted competently and believed the opinion correct, an actual error is not a violation. The Committee concluded, 9-0, that an erroneous opinion violates the Code only if issued with knowledge that it recommended illegal conduct or as a result of a failure to act competently, and that an honest, careful mistake, like a correct opinion, involves no violation.

Currency note

This opinion was issued in 1984, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The Disciplinary Rules have since been amended, and Texas never adopted the ABA's Ethics 2000 framework. The current Texas rules are Rule 1.01 (competence and diligence), Rule 1.02(c) (limits on assisting criminal or fraudulent conduct), and Rule 8.04 (misconduct), with closest ABA analogs Model Rules 1.1, 1.2, and 8.4. Subsequent rule changes or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Is a lawyer who gives a wrong legal opinion automatically in ethical trouble?

A: Per the opinion, no. The Committee concluded the mere fact of legal error is not itself a violation; whether there is a violation usually turns on the lawyer's mental state and competence.

Q: When does an erroneous opinion become an ethics violation?

A: The Committee identified two paths: issuing the opinion knowing it recommended illegal conduct, which implicates DR 1-102(A)(4), DR 1-102(A)(5), and DR 7-102(A)(5) and (7); or issuing it through incompetence, that is, handling a matter beyond the lawyer's competence or without adequate preparation, which violates DR 6-101(A).

Q: What if the lawyer was careful but still wrong?

A: The Committee concluded that if the lawyer acted competently and believed the opinion correct, the fact that it turned out to be erroneous does not make it a violation; a correct opinion likewise involves no violation.

Background and rules framework

The opinion interprets DR 1-102(A)(4) and (5) (dishonesty and conduct prejudicial to the administration of justice), DR 7-102(A)(5) and (7) (false statements and counseling illegal conduct), and DR 6-101(A) (competence and adequate preparation) of the former Texas Code of Professional Responsibility. The closest current concepts are Texas Rules 1.01, 1.02(c), and 8.04 and Model Rules 1.1, 1.2, and 8.4. The analysis turns on the lawyer's knowledge and competence rather than on the correctness of the opinion alone.

Citations and references

Rules of Professional Conduct:

• MR 1.1 (competence)
• MR 1.2 (scope of representation; limits on assisting illegal conduct)
• MR 8.4 (misconduct)
• DR 1-102(A)(4), DR 1-102(A)(5), DR 7-102(A)(5), DR 7-102(A)(7), DR 6-101(A), Texas Code of Professional Responsibility

See also

• TX Ethics Op. 534: Defective QDRO, Competence and Duty to Report
• TX Ethics Op. 523: An Associate's Duty on Discovering a Colleague's Negligent Advice

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-412/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_412.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

QUESTION PRESENTED

In the circumstances described below, does the preparation and issuance by an attorney for an organization of public employees, of a legal opinion in connection with an employment dispute constitute a violation of the Texas Code of Professional Responsibility?

An attorney in the private practice of law represents an organization of employees who are peace officers employed by a political subdivision of the State of Texas. In connection with a dispute between the employee organization and the director of the law enforcement agency that employs the members of the organization, the attorney is retained by the organization to prepare a statement that is designated as a legal opinion and signed by the lawyer as "attorney at law." The opinion recommends a course of conduct contrary to certain orders issued by the director of the law enforcement agency to the peace officer members of the employee organization. The opinion is prepared by the attorney to be circulated to the employee members of the employee organization and is in fact circulated after the opinion has been approved by the employee organization. The person requesting the opinion of the Professional Ethics Committee has alleged that the legal opinion recommends a course of conduct by the employees that is contrary to the legal obligations of the employees.

DISCUSSION

Since the Professional Ethics Committee does not issue opinions on questions of law, the committee expresses no opinion as to whether the legal opinion in question is in accord with, or contrary to, applicable law.

If the legal opinion is a correct statement of law and the legal obligations of the members of the employee organization, issuance of the opinion does not involve violation of any Disciplinary Rule (DR) of the Texas Code of Professional Responsibility.

If the legal opinion in question recommends a course of conduct that is contrary to law, the mere fact of legal error would not itself be grounds for finding the attorney to be in violation of the Texas Code of Professional Responsibility. Whether a violation would be involved would in many cases turn on the mental state of the attorney when he prepared the opinion recommending illegal conduct. If the attorney, with knowledge of the correct legal standard, deliberately issued an opinion recommending conduct that the attorney knew was contrary to law, the attorney would violate DR 1-102(A)(4) by engaging "in conduct involving dishonesty, fraud, deceit, or misrepresentation." Moreover, since the actions of peace officers are involved, the attorney might also be in violation of DR 1-102(A)(5) through engaging "in conduct that is prejudicial to the administration of justice." In addition, the attorney would be in violation of DR 7-102(A)(5) and (7) by knowingly making a false statement of law or fact and by counseling or assisting his client in conduct that the lawyer knows to be illegal.

Even if the lawyer could not be shown to have deliberately issued an erroneous opinion, the lawyer would be in violation of DR 6-101(A) if the erroneous opinion was issued because the lawyer handled a legal matter that he knew or should have known was beyond his competence or handled a legal matter without preparation adequate in the circumstances.

However, if the lawyer acted competently in preparing his opinion and issued it in the belief that the opinion was correct, the fact that the opinion was actually erroneous would not cause the lawyer to be in violation of the Texas Code of Professional Responsibility.

A lawyer for an organization of peace officers who issues an erroneous opinion as to the obligations of the peace officers would be in violation of the Texas Code of Professional Responsibility if the opinion were issued by the attorney with knowledge that the opinion recommended illegal conduct or as a result of the failure of the attorney to act competently in the circumstances. Issuance of an opinion that is erroneous because of an honest mistake and not because of the attorney's failure to act with due care would not involve any violation of the Texas Code of Professional Responsibility. Issuance of a correct opinion in such circumstances would also not involve violation of the Texas Code of Professional Responsibility. (9-0.)

CONCLUSION

A lawyer for an organization of peace officers who issues an erroneous opinion as to the obligations of the peace officers would be in violation of the Texas Code of Professional Responsibility if the opinion were issued by the attorney with knowledge that the opinion recommended illegal conduct or as a result of the failure of the attorney to act competently in the circumstances. Issuance of an opinion that is erroneous because of an honest mistake and not because of the attorney's failure to act with due care would not involve any violation of the Texas Code of Professional Responsibility. Issuance of a correct opinion in such circumstances would also not involve violation of the Texas Code of Professional Responsibility. (9-0.)

Tex. Comm. On Professional Ethics, Op. 412 (1984)